Editorial: Errors in judgement

The discussion surrounding the move to the Caribbean Court of Justice (CCJ) has shone a spotlight on our entire judicial system. There are many who hold the opinion that our resources should be focused on the lower courts, and we should get those houses in order before we seek to build a new, expensive one. That argument is simple and effective because well over 95 percent, and maybe over 99 percent, of all justice is dispensed at our lower courts and still, they fail to receive the focus and resources that they deserve.

A recent case in the high court has ignited the argument to inferno levels, and it has those who have been pointing to the obvious flaws in the current court system, saying, “Look at that!!” We refer to the case of a man who was charged with having sex with a minor but eventually had the case discontinued because the girl was over the age of consent. Apparently, the matter arose from a recording that made the rounds on social media and caught the attention of the girl’s mother. It is alleged that the recording was between the accused man and the female (who was believed to have been a minor) about the price of sexual acts.

The man was eventually charged by the police and taken before the magistrate. The charges continued even though the man’s lawyer pointed out the obvious flaw in the case … the girl’s age! He was eventually granted bail and was lucky enough to meet the conditions of bail, but not before spending some days and nights being detained.

No justice system can be judged by one case, but the circumstances surrounding this case are mind boggling and need to be examined by those at the very top. The most obvious question surrounds the charge that was levied on the man. There are two components to the crime of having sex with a minor. The first is having sex, and the second is that the person is a minor. Without getting into any argument about morality, the audio seems to indicate that the sex seemed consensual, so the focus would be on the age of the young woman since the charge requires that she be a minor; that is, under the age of consent. Under the Sexual Offences Act, the age of consent is 16 years.

At this point, the most crucial piece of evidence would be the girl’s birth certificate. Yet, that all important bit of evidence was seemingly ignored by the police and the magistrate. In effect, the man was charged and hauled before a court for a crime that he obviously did not commit. The error was so egregious that when the matter finally reached to the High Court, Crown Counsel Adlai Smith offered no evidence against the accused. The 53-year-old man entered a not guilty plea, and after more than a year, he was set free and relieved of the bail conditions. It will not be so easy to free himself of the embarrassment and the finger-wagging that will follow him for the rest of his life.

Amazingly, the Crown Counsel said that it was the first time he got sight of the matter, indicating that it is one of those matters that was recently assigned to the Sexual Offences Court. He indicated that the attorney for the accused, Ralph Francis, drew his attention to

the submissions made at the Magistrates’ Court and that caused him to have a look at the child’s birth certificate. He discovered that she was, in fact, over 16 at the time of the sexual encounter. Smith summed it up by saying, “He was committed for having sex with someone under 16, so now, naturally, I don’t have a case. As the prosecutor, I offered no evidence and I withdrew it.” That caused the court to pronounce a formal verdict and free the man from prosecution for an act that was not a crime to begin with.

The retort to the criticism will be that this is evidence that the system works, but that would be incorrect. The system could be considered to have worked if this had stopped at the investigative stage, when it should have been discovered that the young woman was of the age of legal consent. To stretch it further, it could be argued that the system worked if the magistrate had reviewed the key piece of evidence (i.e. the birth certificate) and the defence lawyer’s submissions and chastised the police for being overzealous. But none of that happened. The matter was committed for trial and the man placed on bail with conditions placed on his life.

For whatever reasons, the man was charged for a crime that he did not commit when clear evidence existed that he was innocent. We will not rehash the reasons being circulated on social media as none are pretty and most could get us in trouble. Suffice it to say, the general argument is, how do we trust a new Caribbean court to get it right when we cannot trust the current Caribbean courts to get it right?

It is easy to dismiss this argument, but you would probably be less inclined to do so if you suffered at the hands of this type of ‘justice’. More disturbing is, we all know that this type of ‘justice’ has been meted out before. It will not be the first time someone has been charged for a crime that they so blatantly did not commit, or with a crime that was unconstitutional or did not even exist. Has anything been done? Any discipline? Any sanctions? We must remember that if a person cannot make bail or is denied bail, they are detained until their case is heard. In this particular instance, it was over a year before the case reached the High Court. The argument that the CCJ will be there to provide relief and correct these errors, gives no comfort to those who are uneasy. They prefer that such blatant errors, or whatever you want to call them, do not happen in the first place.